430 U.S.

584
97 S.Ct. 1361
51 L.Ed.2d 660

ROSEBUD SIOUX TRIBE, Petitioner,

v.
Richard KNEIP et al.
No. 75-562.
Argued Jan. 12, 1977.
Decided April 4, 1977.

Syllabus
Both the language and leigslative history of the Acts of 1904, 1907, and
1910, whereby land in certain counties in South Dakota located within the
boundaries of the Rosebud Sioux Reservation as defined in an 1889 Treaty
was required to be deceded by the Reservation Indians to the Government
for sale to settlers under the homestead and townsite laws with the
proceeds to be credited to the Indians only as received or, with respect to
certain parcels, for transfer to South Dakota for school use, held clearly to
evidence a congressional intent to diminish the boundaries of the
Reservation. Although such Acts were unilateral Acts of Congress without
the counsent of three-fourths of the Rosebud Sioux Tribe's adult male
members as was required by the original 1868 Treaty establishing the
Reservation, that fact does not directly bear on the question whether
Congress by these later Acts intended to diminish the Reservation
boundaries. Nor is it conclusive with respect to congressional intent that
these Acts changed the method of payment from an outright, fixed-sum
payment to the Indians required by a 1901 Agreement that would have
amended the 1889 Treaty and would have resulted in a diminution of the
Reservation boundaries, but which, although approved by three-fourths of
the Tribe's adult male members, was never ratified by Congress. Pp. 586615.
521 F.2d 87, affirmed.
Marvin J. Sonosky, Washington, D. C., for petitioner.
William J. Janklow, Pierre, So. Dak., for respondents.

H. Bartow Farr, for the United States, as amicus curiae, pro hac vice, by
special leave of Court.
Mr. Justice REHNQUIST delivered the opinion of the Court.

In June 1972, the Rosebud Sioux Tribe sued in the United States District Court
for the District of South Dakota to obtain a declaratory judgment that the
original boundaries of their reservation, as defined in the Act of March 2, 1889,
25 Stat. 888, had not been diminished by three subsequent Acts of Congress
passed in 1904, 1907, and 1910 representively.1 The District Court, noting that
'(f)rom the time these acts were passed, these (four) counties have been treated
as outside the Rosebud Sioux Reservation by the settlers, their descendants, the
State of South Dakota and the federal courts,' 375 F.Supp. 1065, 1084, denied
relief. It concluded that Congress had intended to diminish the Reservation so
as to exclude the four counties in South Dakota affected by the 1904, the 1907,
and the 1910 Acts. The United States Court of Appeals for the Eighth Circuit,
in a careful and comprehensive opinion, affirmed the judgment of the District
Court. 521 F.2d 87. We granted certiorari, 425 U.S. 989, 96 S.Ct. 2199, 48
L.Ed.2d 814, to review this determination in the light of our recent decisions in
DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d
300 (1975), and Martz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92
(1973). Since we conclude that the three Acts of Congress in qeuestion satisfy
the requirement that '(a) congressional determination to terminate (an Indian
reservation) must be expressed on the face of the Act or be clear from the
surrounding circumstances and legislative history,' Mattz v. Arnett, supra, at
505, 93 S.Ct., at 2258, we affirm the judgment of the Court of Appeals.

* When established, the Rosebud Indian Reservation contained somewhat over

3.2 million acres, and covered all or a portion of what later became five
counties in South Dakota: Gregory, Tripp, Lyman, Mellette, and Todd. The
three Acts we are asked to construe successively disposed of all unallotted
lands in Gregory County (1904 Act), in Tripp and Lyman Counties (1907 Act),
and in Mellette County (1910 Act). Only Todd County remains unaffected by
these post-1889 enactments. The contention of the Rosebud Sioux Tribe is that
these Acts, while opening up the unallotted land outside of Todd County to
non-Indian settlement, did not thereby change the Reservation boundaries,
which continued to encompass these five counties.

In determining whether or not the 1889 Reservation boundaries were

subsequently diminished by congressional enactments, we are guided by wellestablished legal principles. The underlying premise is that congressional intent

will control. DeCoteau v. District County Court, supra, at 444, 449, 95 S.Ct., at
1092, 1095; United States v. Celestine, 215 U.S. 278, 285, 30 S.Ct. 93, 94, 54
L.Ed. 195 (1909). In determining this intent, we are cautioned to follow 'the
general rule that '(d)oubtful expressions are to be resolved in favor of the weak
and defenseless peopld who are the wards of the nation, dependent upon its
protection and good faith." McClanahan v. Arizona State Tax Comm'n, 411
U.S. 164, 174, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973), quoting Carpenter
v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930); see also
Mattz v. Arnett, supra, at 505, 93 S.Ct., at 2258. The mere fact that a
reservation has been opened to settlement does not necessarily mean that the
opened area has lost its reservation status. Mattz v. Arnett, supra; see also
Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962).
But the 'general rule' does not command a determination that reservation status
survives in the face of congressionally manifested intent to the contrary.
DeCoteau v. District County Court, supra. In all case, 'the face of the Act,' the
'surrounding circumstances,' and the 'legislative history,' are to be examined
with an eye toward determining what congressional intent was. Mattz v. Arnett,
supra, at 505, 93 S.Ct., at 2258.
4

Applying these principles to the facts of this case, we conclude that the Acts of
1904, 1907, and 1910 did clearly evidence congressional intent to diminish the
boundaries of the Rosebud Sioux Reservation. The parties agree that an
amendment to the 1889 Treaty, which provided for a fixedsum payment and
which was approved by three-fourths of the Rosebud Sioux Tribe's adult males
in 1901, would have resulted in the diminution of the Rosebud Reservation
boundaries. Congress did not, however, approve the 1901 amendment to the
Treaty which the Tribe had ratified. The Tribe contends that, lacking tribal
ratification and a fixed-sum provision, the later Acts were ineffectual to
accomplish this same result. In the Tribe's view, the absence of these two
factors vitally distinguishes the Acts in question from the otherwise similar Act
examined in DeCoteau v. District County Court, supra. Because of the reasons
hereafter set forth in greater detail, we conclude that, although the Acts of
1904, 1907, and 1910 were unilateral Acts of Congress without the consent of
three-quarters of the members of the tribe required by the original Treaty,2 that
fact does not have any direct bearing on the question of whether Congress by
these later Acts did intend to diminish the Reservation boundaries. By the time
of the first of these Acts, in 1904, Congress was aware of the decision of this
Court in Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.C.t 216, 47 L.Ed. 299
(1903), which held that Congress possessed the authority to abrogate
unilaterally lthe lplrovisionls of an Indian treaty. We also conclude that the
changed method of payment is not conclusive with respect to congressional
intent. Although the later Acts of Congress made less secure provisions for

payment to the Tribe for the lands in question than did the 1901 Treaty, their
language with respect to the reservation status of the opened lands was identical
with or derivative from the language used in that proposed amendment.3 The
language was also substantially equivalent to that used in the executed
agreement involved in DeCoteau. We agree with the Court of Appeals and the
District Court that this language not only opened the land for settlement, but
diminished the boundaries of the Reservation pro tanto.4
II
5

The Rosebud Sioux are one of the tribes of Indians of the Sioux Nation. The
Treaty of April 29, 1868, 15 Stat. 635, set aside all the land in South Dakota
west of the Missouri River as the Great Sioux Reservation, consisting of some
25 million acres. Article 12 of the Treaty provided that no subsequent treaty for
the cession of any part of the reservation would be valid without the written
consent of three-fourths of the adult male Indians on the reservation. Despite
this provision, in 1877 approximately 7.5 million acres, consisting of the Black
Hills portion of the Great Sioux Reservation, were removed from the
reservation by the Act of February 28, 1877, 19 Stat. 254. See Sioux Tribe v.
United States, 97 Ct.Cl. 613 (1942), cert. denied, 318 U.S. 789, 63 S.Ct. 992,
87 L.Ed. 1155. Of the remaining reservation, approximately one-half was
'restored to the public domain' under the Act of March 2, 1889, 25 Stat. 896,
21,5 while six separate reservations were carved out of the remainder, id., 16. Section 2 set apart the Rosebud Reservation, encompassing what were later
organized as three full counties (Todd, Mellette, and Tripp), a major portion of
Gregory County, and a small portion of Lyman.6 This reservation, as originally
delimited, contained over 3.2 million acres.

Around the turn of the century, the 'familiar forces' to which we referred in
DeCoteau v. District County Court, led to demands to open up the
Reservation.7 A provision in the Indian Department Appropriation Act, Mar. 3,
1901, 31 Stat. 1077, provided:

'(T)he Secretary of the Interior be, and he is hereby, authorized, in his

discretion, to negotiate, through any United States Indian inspector, agreements
with any Indians for the cession to the United States of portions of their
respective reservations or surplus unallotted lands, any agreements thus
negotiated to be subject to subsequent ratification by Congress.'

Shortly thereafter Inspector James McLaughlin was instructed by the

Commissioner of Indian Affairs to begin 'negotiations with the Indians of the
Rosebud reservation, in South Dakota, for the cession of the unallotted eastern

portion of their reserve.' Letter dated Mar. 19, 1901, from W. A. Jones,
Commissioner, Office of Indian Affairs, Department of Interior. Following
meetings with members of the Tribe during the spring and summer of 1901,
Inspector McLaughlin obtained the written consent of three-fourths of the male
Indian adults to the cession of some 416,000 acres of unallotted land in Gregory
County for the sum of $1,040,000, subject to congressional ratification.8 The
negotiated Agreement, however, was never ratified,9 'because of the fact that it
provided that the Government should pay for the lands outright . . ..' 38
Cong.Rec. 1423 (1904) (remarks of Rep. Burke). 10
9

What is important for our purposes is the undisputed fact that the 1901
Agreement, had it been ratified by Congress, would have disestablished that
portion of the Rosebud Reservation which lay in Gregory County. Inspector
McLaughlin explained to the Tribe that '(t)he cession of Gregory County' by
ratification of the Agreement 'will leave your reservation a compact, and almost
square tract, and would leave your reservation about the size and area of Pine
Ridge Reservation.'11 It is conceded that his description was correct; the effect
and intent of the 1901 Agreement, if ratified, would have been to change the
Reservation boundaries. As we noted in DeCoteau v. District County Court,
420 U.S., at 445, 95 S.Ct., at 1093, in construing virtually identical language:
'The Agreement's language . . . was precisely suited to this purpose (of
disestablishment).' In this Agreement, therefore, we have unlike the situation in
Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973) an
unmistakable baseline purpose of disestablishment.

10

An examination of the legislative processes which resulted in the 1904 Act

convinces us, as it did the lower courts, that this purpose was carried forth and
enacted. Because of the history of the 1901 Agreement, the 1904 Act cannot,
and should not, be read as if it were the first time Congress had addressed itself
to the diminution of the Rosebud Reservation.

11

In 1903, new bills were introduced, and subsequently reported from committee
in both chambers of Congress, which proposed 'to adopt a new policy in
acquiring lands from the Indians (by) provid(ing) that the lands shall be
disposed of to settlers . . ., and to be paid for by the settlers, and the money to
be paid to the Indians only as it is received . . . from the settlers.'12 The Senate
bill, S. 7390, passed the Senate in February, 36 Cong.Rec. 2748 (1903), but the
57th Congress expired before the House could give it consideration. In line
with the changes in S. 7390, which related to the method of payment, Inspector
McLaughlin was subsequently instructed to go to the Rosebud Reservation to
negotiate a new agreement.13 He explained to the Rosebud Tribe: 'I am here to
enter into an agreement which is similar to that of two years ago, except as to

the manner of payment . . .. You will still have as large a reservation as Pine
Ridge after this is cut off.'14
12

Inspector McLaughlin failed to get three-fourths of the adult male Indians to

consent to this new method of payment, although he did obtain the consent of a
majority, provided that the price to homesteaders be raised from $2.50 to $2.75
per acre. Agreement of August 10, 1903.15 However, as Inspector McLaughlin
had explained to the Tribe,16 Congress understood that it was not bound by the
three-fourths consent requirement of the 1868 Treaty with the Sioux Nation. In
Lone Wolf v. Hitchcock, 187 U.S., at 566, 568, 23 S.Ct., at 221, 222, this
Court, dealing with the validity of a cession of tribal lands enacted in
contravention of a treaty requiring three-fourths Indian consent, held:

13

'The power exists to abrogate the provisions of an Indian treaty, though

presumably such power will be exercised only when circumstances arise which
will not only justify the government in disregarding the stipulations of the
treaty, but may demand, in the interest of the country and the Indians
themselves, that it should do so. When, therefore, treaties were entered into
between the United States and a tribe of Indians it was never doubted that the
power to abrogate existed in Congress . . ..

14

'. . . In any event, as Congress possessed full power in the matter, the judiciary
cannot question or inquire into the motives which prompted the enactment of
this legislation.'

15

Although Inspector McLaughlin failed to garner the signatures of three-quarters

of the Indians in consent of the proposed changes, Congress understandably
relied on this holding as authorizing it to diminish unilaterally the Reservation
boundaries.

16

In examining congressional intent, there is no indication that Congress intended

to change anything other than the form of, and responsibility for, payment. In
recommending ratification of the 1901 Agreement, as modified, the
accompanying House Report stated:

17

'The purpose of this bill is to ratify and amend an agreement made with the
Rosebud Indians in South Dakota by Inspector James McLaughlin, dated
September 14, 1901, providing for the cession to the United States of the
unallotted portion of their lands in Gregory County, S. Dak., and opening the
same to settlement and entry under the homestead and town-site laws.

18

'There is no question but what the Indians have no use for the land that is
proposed to be ceded by this bill; that the tract is only a very small portion of
the Rosebud Reservation, and is really only a corner of the reservation, which
will be left compact and in a square tract and a reservation about equal in size to
the Pine Ridge Reservation, in South Dakota.'17

19

On the floor of the House, Congressman Burke, the 1904 Act's sponsor, in
discussing the changes in the Agreement since 1901, made clear that the new
bill was concerned only with the responsibility for payment, 38 Cong.Rec.
1423 (1904):

20

'Mr. BURKE. . . . In 1901 a treaty was entered into with the Rosebud Indians on
the part of the United States, by which the Indians agreed to sell to the
Government this land for $2.50 per acre. That treaty was transmitted to
Congress, and because of the fact that it provided that the Government should
pay for the lands outright and then take the chance of the Treasury being
reimbursed by disposing of the lands to settlers, it never got further than
through the Committee on Indian Affairs, which unanimously reported it
favorably. It was never given consideration in the House.

21

'Toward the concluding days of the last session of Congress a new bill was
prepared, substantially as this bill now provides, and that bill provided that the
lands should be ceded by the Indians to the Government, disposed of to settlers
under the provisions of the homestead law, the price to be fixed at $2.50 an
acre, as was provided in the original treaty. . . . This bill is substantially the
same as the bill which I have just referred to . . ..'

22

The bill itself, as introduced and passed by both Houses, incorporated the entire
text of the 1903 Agreement, which itself followed the 1901 Agreement except
that: (1) the Indians were not guaranteed any consideration for the land except
with respect to the 16th and 36th sections (school sections), but were to be paid
only as the lands were actually sold to settlers; (2) the United States did not
guarantee to find purchasers but agreed only to 'act as trustee for said Indians to
dispose of said lands.'18 In particular, the 1904 Act incorporated verbatim the
language of immediate cession of the 1901 Agreement:

23

'The said Indians belonging on the Rosebud Reservation, South Dakota, for the
consideration hereinafter named, do hereby cede, surrender, grant, and convey
to the United States all their claim, right, title, and interest in and to all that part
of the Rosebud Indian Reservation now remaining unallotted, situated within
the boundaries of Gregory County . . .' 33 Stat. 256.

24

As in DeCoteau v. District County Court, 420 U.S., at 445, 95 S.Ct., at 1093,

this language is 'precisely suited' to disestablishment.

25

Petitioner, however, objects that a 'cession' requires bilateral consent, and the
failure of Inspector McLaughlin to gain the approval of three-quarters of the
male adult Indians vitiates any 'cession.' As a matter of strict English usage,
petitioner is undoubtedly correct; 'cession' refers to a voluntary surrender of
territory or jurisdiction, rather than a withdrawal of such jurisdiction by the
authority of a superior sovereign. But as Mr. Justice Holmes (then Judge)
commented, we are not free to say to Congress: 'We see what you are driving
at, but you have not said it, and therefore we shall go on as before.' Johnson v.
United States, 163 F. 30, 32 (CA1 1908). Congress was simply repeating
verbatim language from a bill ratifying the 1901 Agreement, which had made
the proper use of the word 'cession' because the Agreement had been approved
by the Tribe. The use of the word 'cession' in the 1904 Act, which was not
consented to by the required extraordinary majority of the Tribe, does not make
the meaning of the Act ambiguous as between diminution of the Reservation
boundaries on the one hand, and merely opening up designated lands for
settlement by non-Indians, on the other. The word is technically misused, but
the meaning is quite It was intended to accomplish, in 1904, precisely what it
was intended to accomplish in 1901. Congress was under no misapprehension
that the required portion of the Tribe had in fact approved the treaty. It knew
that while a majority of the Tribe had approved it, the required extraordinary
majority had not; but it had determined nonetheless to go ahead and accomplish
the same result unilaterally as the Agreement would have accomplished
bilaterally.19

26

The 'bill provided that the lands should be ceded by the Indians to the
Government . . ..' 38 Cong.Rec. 1423 (1904) (remarks of Rep. Burke). It is
clear that Congress was relying on Lone Wolf v. Hitchcock, 187 U.S. 553, 23
S.Ct. 216, 47 L.Ed. 299 (1903), in making this unilateral declaration. There is
nothing in the changed method of payment, or the failure to obtain a threequarters vote from the Indians, which indicates that the clear intent of the 1901
Agreement to diminish the Reservation boundaries had changed between 1901
and 1904.20 The Tribe, moreover, was eventually paid for the land, supra, at
588 n. 3.

27

This implied continuity in purpose from 1901 to 1904 does not, however, stand
alone in indicating congressional intent. Section 4 of the 1904 Act, 33 Stat. 258,
provides, in pertinent part:

28

'(S)ections sixteen and thirty-six of the lands hereby acquired in each township

shall not be subject to entry, but shall be reserved for the use of the common
schools and paid for by the United States at two dollars and fifty cents per acre,
and the same are hereby granted to the State of South Dakota for such purpose .
. ..'
29

When North and South Dakota were admitted into the Union, 10 of the
admitting Act, Act of Feb. 22, 1889, 25 Stat. 679, provided, in pertinent part:

30

'(U)pon the admission of each of said States into the Union sections numbered
sixteen and thirty-six in every township of said proposed States . . . are hereby
granted to said States for the support of common schools . . .: Provided, That
the sixteenth and thirty-sixth sections embraced in permanent reservations for
national purposes shall not, at any time, be subject to the grants . . . of this act,
nor shall any land embraced in Indian, military, or other reservations of any
character be subject to the grants . . . of this act until the reservation shall have
been extinguished and such lands be restored to, and become a part of, the
public domain.'

31

The language of 10 is mandatory: 'nor shall' the 16th and 36th sections of
lands within Indian reservations 'be subject to the grants . . . until the
reservation shall have been extinguished . . ..' While Congress would have had
the power to establish other grants, cf. 43 U.S.C. 856, the legislative history,
in this case, demonstrates that Congress 'included the provision to implement
the grant in the enabling act and for no other reason.' 521 F.2d, at 101.21 Both
the House and Senate Reports explicitly noted that the 'school sections'
provision of what became the 1904 Act 'is in conformity with the guarantee
given to the State of South Dakota by Congress in the enabling act . . ..'22
Congress, therefore, clearly thought that it was acting pursuant to 10 of the
Act of February 22, 1889, and not sub silentio adding an additional grant for
school lands located within a continuing reservation.23 The far more natural
construction, then, is to read a congressional intent to disestablish Gregory
County from the Rosebud Reservation, thereby making the sections available
for disposition to the State of South Dakota for 'school sections' under 10 of
the Act of February 22, 1889.24

32

That it was clearly understood, at least by the Executive Branch, that the 1904
Act, like the 1901 Agreement, contemplated a diminution of the Reservation, is
apparent from the Rosebud Proclamation of May 13, 1904, 33 Stat. 2354. In
accordance with the requirement of 2 of the 1904 Act that the land would 'be
disposed of under the general provisions of the homestead and townsite laws of
the United States, and shall be opened to settlement and entry,' the
Proclamation stated, in pertinent part:

33

'Whereas by an agreement between the Sioux tribe of Indians on the Rosebud

Reservation, in the State of South Dakota, on the one part, and James
McLaughlin, a United States Indian Inspector, on the other part, amended and
ratified by act of Congress . . . the said Indian tribe ceded, conveyed,
transferred, relinquished, and surrendered, forever and absolutely, without any
reservation whatsoever, expressed or implied, unto the United States of
America, all their claim, title, and interest of every kind and character in and to
the unallotted lands embraced in the following described tract of country now
in the State of South Dakota, . . .

34

'NOW, THEREFORE, I, THEODORE ROOSEVELT, President of the United

States of America, by virtue of the power vested in me by law, do hereby
declare and make known that all of the lands so as aforesaid ceded by the Sioux
tribe of Indians of the Rosebud Reservation . . . will, on the eighth day of
August, 1904, at 9 o'clock a. m., in the manner herein prescribed and not
otherwise, be opened to entry and settlement and to disposition under the
general provisions of the homestead and townsite laws of the United States.'
(Emphasis supplied.)

35

The opening portion of the Proclamation is an unambiguous, contemporaneous

statement, by the Nation's Chief Executive, of a perceived disestablishment of
Gregory County. It reflects, we believe, the clear import of the congressional
action in the 1904 Act.

36

In sum, an examination of the process leading up to the enactment of the 1904

Act, as well as the language and legislative history, leads us, as it led the Court
of Appeals and the District Court, to the firm conclusion that congressional
intent was to exclude Gregory County from the Rosebud Reservation.25

37

Although the subsequent 'jurisdictional history,' DeCoteau v. District County

Court, 420 U.S., at 442, 95 S.Ct., at 1091, is not entirely clear, the single most
salient fact is the unquestioned actual assumption of state jurisdiction over the
unallotted lands in Gregory County since the passage of the 1904 Act, see 375
F.Supp., at 1084; Amended Complaint 21.26 Since state jurisdiction over the
area within a reservation's boundaries is quite limited, 18 U.S.C. 1151;
McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 93 S.Ct. 1257, 36
L.Ed.2d 129 (1973); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d
251 (1959); Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832), the fact that
neither Congress nor the Department of Indian Affairs has sought to exercise its
authority over this authority is a favor entitled to weight as a part of the
'jurisdictional history,'27 The longstanding assumption of jurisdiction by the
State over an area that is over 90% area, or to challenge the State's exercise of

use, not only demonstrates the parties' understanding of the meaning of the Act,
but has created justifiable expectations which should not be upset by so strained
a reading of the Acts of Congress as petitioner urges.28 We are simply unable to
conclude that the intent of the 1904 Act was other than to disestablish.
III
38

Having determined that the 1904 Act carried forth the intent to disestablish
which was unquestionably manifested in the 1901 Agreement, our examination
of the 1907 and the 1910 Acts is made easier. None of the parties really
disputes that the intent of the three Acts was the same.29 Because the later Acts
do vary in some respects, however, we shall explain briefly why we find a
continuity of intent through the 1907 and the 1910 Acts.30

39

The 'familiar forces' at work pressing for the opening of Indian lands did not
cease with the cession of Gregory County. By late 1906, Congressman Burke
was preparing a bill dealing with the 'sale of that part of the reservation located
in Tripp County.'31 Inspector McLaughlin was instructed to proceed to the
Rosebud Reservation to negotiate an agreement for land in Tripp County which
when 'ceded should be disposed of under the general provisions of the
homestead and townsite laws of the United States,' and he was given suggested
terms, 'similar to those in the disposal of the ceded lands in Gregory County . .
.'32 Inspector McLaughlin's negotiations produced virtually the same result as in
1904. A 1907 Agreement, signed by a majority, but not by three-fourths, of the
adult male Indians, provided that the Indians 'do hereby cede, grant, and
relinquish to the United States all claim, right, title, and interest in and to all
that part of the Rosebud Indian Reservation (in Tripp and Lyman Counties),
except such portions thereof as have been, or may hereafter be, allotted to
Indians.'33 The Secretary of the Interior recommended that Congress ratify the
Agreement, Letter from E. A. Hitchcock, supra, n. 33, and the Senate
Committee on Indian Affairs reported a ratification bill out, S.Rep. No. 6831,
59th Cong., 2d Sess. (1907). By this time, however, the House had already
passed a second bill introduced by Congressman Burke which did not
incorporate the Agreement, 41 Cong.Rec. 3103-3105 (1907) (H.R. 24987),
although it did substantially incorporate the terms of the Agreement, as noted
by Congressman Burke, id., at 3104:

40

'The bill is substantially in accordance with an agreement which has just been
made with the Indians, signed by (a majority). . . . It is along the line of the bill
which passed in the Fifty-eighth Congress for the sale of that portion of this
same reservation that is located in Gregory County.

41

'. . . They will have left, after this land is disposed of, a reservation that is
substantially 50 miles square . . .'34

42

The operative language of the bill, subsequently passed by the Senate without
debate, and enacted into law, 34 Stat. 1230, provided:

43

'(T)he Secretary of the Interior be, and he is hereby, authorized and directed, as
hereinafter provided, to sell or dispose of all that portion of the Rosebud Indian
Reservation in South Dakota (in Tripp and Lyman Counties), except such
portions thereof as have been, or may hereafter be, allotted to Indians . . ..'

44

As the parties recognize, the substance of the 1907 Act is identical to the 1904
Act. Section 2 provides for the disposition of lands under the 'general
provisions of the homestead and town-site laws,' while 3 specifies land
purchase prices, with the proviso that 'any lands remaining unsold after the said
lands have been opened to entry for seven years may be sold to the highest
bidder for cash, without regard to the above minimum limit of price.'35 Section
6 provides for the purchase by the United States of sections 16 and 36 of the
lands in each township and their transfer to South Dakota for 'the use of the
common schools.'36 Sections 5 and 7 provide that the United States is to act as
trustee for the Indians to dispose of the lands and to collect and dispense the
proceeds.37

45

In virtually all respects, then, except for the operative language in 1 replacing
the Agreement language, the 1907 Act is a functional twin of the 1904 Act.
And, as the legislative comments make clear, supra, at 607-608, the change in
1 language was not intended to modify or change the purposes or operation of
the 1904 Act.38 We agree with the Court of Appeals' conclusion, 521 F.2d, at
104:

46

'Nothing in the language of the 1907 Act or in the surrounding circumstances

and legislative history indicates a change in that congressional determination to
alter the reservation boundaries which we have found in the 1904 Act.'

47

The 1907 Act, like the 1904 Act which preceded it, disestablished the land in
Tripp and Lyman Counties from the Rosebud Reservation.

48

The pressures for more had not yet expended themselves with the passage of
the 1907 Act. In late 1908, Senator Gamble submitted a new bill authorizing
the sale and disposition of a portion of the surplus and unallotted lands in

Mellette County and in a strip located in the eastern part of Todd County, S.
7379, 43 Cong.Rec. 65 (1908). The accompanying Senate Report noted, in
proposing the opening to settlement of an area comprising about 900,000 acres,
that '(t)he present area of the Rosebud Indian Reservation aggregates 1,800,000
acres.' S.Rep. No. 887, 60th Cong., 2d Sess., 1 (1909) (emphasis supplied).39
The school-sections provision was again included in the bill, 'to be paid for by
the Government in conformity with the provisions of the act admitting the State
of South Dakota into the Union.' Id., at 2.40 Senator Gamble was unable to have
the Senate consider the bill before the term of Congress expired, and Inspector
McLaughlin was once again dispatched to conduct negotiations with the
Rosebud Tribe concerning the Gamble bill.41 This time, he did not seek to
negotiate an agreement with the Indians, but reported back to the Secretary of
the Interior the 'practically unanimous' concurrence of the Indians 'in the
opening of the northern strip, provided the two tiers of townships in the eastern
part of Meyer (sic) County remain a part of the diminished reservation.'42
49

New bills were introduced similar in purpose to the original Gamble bill.43 The
Secretary of the Interior recommended to Congress that the bill open only
Mellette County, and not the eastern part of Todd County, and that the bill also
include a provision subjecting the land to be opened 'for a period of twenty-five
years to all the laws of the United States prohibiting the introduction of
intoxicants into the Indian country.'44 These changes were made in S. 183, see
S.Rep. No. 68, 61st Cong., 2d Sess. (1910). The Report noted, id., at 2-4:

50

'The present area of the Rosebud Indian Reservation aggregates about

1,800,000 acres. The lands proposed to be opened to settlement under the
provisions of this bill embrace an area of about 830,000 acres. . . .

51

'. . . It also provides that the Secretary of the Interior, in his discretion, may
permit Indians who have allotments within the area proposed to be opened to
relinquish such allotments and to receive in lieu thereof allotments anywhere
within the reservation proposed to be diminished.

52

'Sections 16 and 36 of the lands in each township are not to be disposed of, but
are reserved for the use of the common schools of the State, and these lands are
to be paid for by the Government in conformity with the provisions of the act
admitting the State of South Dakota into the Union. . . .

53

'Although Congress has full power to enact legislation of this character without
the consent of the Indians, it was felt the Indians should be fully advised as to
the provisions of the pending measure and their views should be asked in

regard thereto.'
54

The bill was passed by the Senate on January 17, 1910, 45 Cong.Rec. 10651066, 1075 (1910), and the House Committee on Indian Affairs decided to
adopt the Senate bill, its Report noting:

55

'The Rosebud Indian Reservation when set aside as a separate reservation under
the Sioux act of 1889 contained something over 3,000,000 acres of land. (Then
follows a description of the 1904 Act and the 1907 Act, observing that the 1907
Act was 'substantially in the same form as the bill now under consideration . . .')

56

'The area comprised in the present bill is about 800,000 acres . . .. There will
still be left a reservation containing about 1,000,000 acres, and as the Indians
have all been allotted there is no occasion for continuing a reservation larger
than it will be when Mellette County is disposed of.'45

57

The bill then passed the House with amendments, id., at 5473 (1910), and, after
conference to reconcile differences in the House and Senate bills not material
here, the bill became law on May 30, 1910.46

58

The 1910 Act is substantially similar to the 1907 Act, and uses identical
operative language authorizing and directing the Secretary of the Interior 'to sell
and dispose of all that portion of the Rosebud Indian Reservation (in present
day Mellette County) . . . except such portions thereof as have been or may be
hereafter allotted to Indians . . ..' 36 Stat. 448. Because of the substantive
similarity of the Acts, no useful purpose would be served in recounting the
similar provisions contained in the 1910 Act. Two new provisions, however, do
warrant mention. The first is a proviso in 1, stating:

59

'(A)ny Indians to whom allotments have been made on the tract to be ceded
may, in case they elect to do so before said lands are offered for sale, relinquish
same and select allotments in lieu thereof on the diminished reservation.'

60

The proviso, on its face, is a strong indication of the continuing intent to

disestablish the affected areas, first manifested in the 1901 Agreement. The
second is the provision in 10 of the 1910 Act, included at the suggestion of
the Secretary of the Interior, subjecting the opened land 'for a period of twentyfive years to all the laws of the United States prohibiting the introduction of
intoxicants into the Indian country.' As there existed, in 1910, an outstanding
prohibition against the introduction of intoxicants into 'Indian country,' see Act
of July 23, 1892, 27 Stat. 260, the most reasonable inference from the inclusion

of this provision is that Congress was aware that the opened, unallotted areas
would henceforth not be 'Indian country,' because not in the Reservation.47
61

These added provisions, as well as the clear legislative history of the 1910 Act,
reflect strongly the continued intent to diminish the Reservation boundaries. We
conclude that the 1910 Act continued the policies of the prior two Acts, and
Mellette County was thereby detached from the Reservation.

IV
62

The intent of Congress in the 1904, the 1907, and the 1910 Acts was to change
the boundaries of the original 1889 Rosebud Reservation. Much has changed
since then, and if Congress had it to do over again it might well have chosen a
different course. But, as we observed in DeCoteau v. District County Court,
420 U.S., at 449, 95 S.Ct., at 1095: '(O)ur task here is a narrow one. . . . (W)e
cannot remake history.'48

63

Affirmed.

64

Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN and Mr. Justice
STEWART join, dissenting.

65

The Court holds today that in 1904, 1907, and 1910, Congress broke solemn
promises it had made to the Rosebud Sioux Tribe and took from them, without
any guarantee of compensation, three-quarters of their reservation. Although it
was suggested at argument, Tr. at Oral Arg. 18-20, that the only consequence of
such a holding would be to preclude the Tribe from continuing to exercise the
jurisdiction granted to it by its approved constitution and bylaws,1 in fact much
more is at stake. This case involves not just the rights of the Tribe, but also the
rights of approximately 2,000 Indians living in the disputed area, and the right
of the United States to continue to administer the disputed area as part of the
Rosebud Reservation.2 See Part IV, infra. In addition, the ramifications of
today's decision may extend to a large number of other reservations throughout
the Nation. See ibid. I therefore feel constrained to explain at length why the
decision, is, in my view, wholly unjustifiable.

66

Until today, the effect on reservation boundaries of Acts disposing of surplus

reservation land was well settled. The general rule, entitled to 'the broadest
possible scope,' is that in interpreting these Acts 'legal ambiguities are resolved
to the benefit of the Indians.' DeCoteau v. District County Court, 420 U.S. 425,
447, 95 S.Ct. 1082, 1094, 43 L.Ed.2d 300 (1975). Congressional intent

therefore must be 'clear' before this Court will find that a reservation
established by Congress (or the Executive) was disestablished. Mattz v. Arnett,
412 U.S. 481, 505, 93 S.Ct. 2245, 2258, 37 L.Ed.2d 92 (1973). Applying these
principles, the Court has found disestablishment when Congress ratified a treaty
by which Indians agreed to sell all interest in part or all of a reservation,
DeCoteau v. District County Court, supra, or when Congress employed express
words of termination, Mattz v. Arnett, supra, at 504 n. 22, 93 S.Ct., at 2258
(dictum). But when, as here, Congress merely 'opened' a reservation that is,
made reservation lands available to non-Indians and acted as a sales agent on
behalf of the Indians the reservation boundaries have been held to be
unaffected. Mattz v. Arnett, supra; Seymour v. Superintendent, 368 U.S. 351,
82 S.Ct. 424, 7 L.Ed.2d 346 (1962). In DeCoteau, the Court clearly
distinguished the two situations, observing:
67

'(A purchase-and-sale Act) is not a unilateral action by Congress but the

ratification of a previously negotiated agreement, to which a tribal majority
consented. (It) does not merely open lands to settlement; it also appropriates
and vests in the tribe a sum certain . . . in payment for the express cession and
relinquishment of 'all' of the tribe's 'claim, right, title, and interest,' in the
unallotted lands. The statute in Mattz, by contrast, benefited the tribe only
indirectly, by establishing a fund dependent on uncertain fature sales of its land
to settlers.' 420 U.S, at 448, 95 S.Ct., at 1094.

68

Today, however, the Court obliterates this distinction, and, by holding against
the Tribe when the evidence concerning congressional intent is palpably
ambiguous, erodes the general principles for interpreting Indian statutes.

69

* What is perhaps most striking about the Rosebud Acts, in light of the
interpretation the Court places upon them, is the absence of any express
provision disestablishing the Reservation. As we observed in Mattz: 'Congress
has used clear language of express termination when that result is desired.' 412
U.S., at 504 n. 22, 93 S.Ct., at 2258. We cited three examples in Mattz: 15 Stat.
221, which stated that 'the Smith River reservation is hereby discontinued'; 27
Stat. 63, which stated that 'a portion of the Colville Indian Reservation . . . is
hereby, vacated and restored to the public domain'; and 33 Stat. 218, enacted
just two days before the first of the Rosebud Acts, which stated that 'the
reservation lines of the said Ponca and Otoe and Missouria Indian reservations .
. . are hereby abolished.' The very Act that created the Rosebud Reservation
provides yet another example, for in that Act Congress expressly 'restored to
the public domain' part of the Great Sioux Reservation. Act of Mar. 2, 1889,
21, 25 Stat. 896. And other examples abound.3

70

The Acts in question contain no similar language. The Act of April 23, 1904, 33
Stat. 254, is peculiarly drafted statute. In substance, it is no different from the
statutes considered in Mattz and Seymour; it opens lands on the Reservation to
white settlers, guarantees to the Indians the proceeds from the sale of the lands,
but does not commit the United States to purchasing the land.4 In form,
however, the Act 'amended and modified' and then 'ratified' the 1901
Agreement between Inspector McLaughlin and the Rosebud Sioux in which the
Tribe agreed to sell the lands in question to the United States for a lump sum;
this Agreement had been rejected by the Congress in 1902. The 'amendments'
which Congress unilaterally inserted obviously were substantial, since they
transformed the transaction from a DeCoteau-type purchase to a Mattz-type
'opening.' But because the ratification format was used, the 1904 Act contains
language from the 1901 Agreement which provided that the 'Indians belonging
on the Rosebud Reservation, South Dakota, for the consideration hereinafter
named, do hereby cede, surrender, grant, and convey to the United States all
their claim, right, title, and interest' in the unallotted lands in Gregory County.

71

In DeCoteau we stated that this language, when contained in an agreement

approved by the Indians and ratified by Congress, is 'precisely suited,' 420
U.S., at 445, 95 S.Ct., at 1093, to terminating a reservation. But I cannot agree
with the Court, ante, at 597, that the language is equally well suited to
disestablish the Reservation here. Its usage may simply mean that Congress
found that working from an earlier document in this case the 1901 Agreement
was easier than drafting a new law. Whereas in DeCoteau the key phrase
expressed the Indians' understanding of what they were surrendering and the
Government's understanding of what it was acquiring, here the Indians had not
agreed to this transaction and the Government disclaimed any intent to purchase
anything other than school lands, see n. 4, supra. Indeed, as the Court concedes,
ante, at 597, as a matter of English usage the words 'cede, surrender, grant, and
convey,' make no sense in the context of an 'agreement' to which the seller has
not assented. Thus the Court ultimately rests its decision on an asserted ability
to "see what (Congress is) driving at," even though Congress has "not said it."
Ibid.

72

The 1907 and 1910 Acts are far simpler for present purposes. They contain
neither words of cession nor words of termination. They simply 'authorized and
directed' the Secretary of the Interior 'to sell or dispose of' the specified lands
'under the general provisions of the homestead and town-site laws of the United
States.' Act of Mar. 2, 1907, 1, 2, 34 Stat. 1230; Act of May 30, 1910, 1,
2, c. 260, 36 Stat. 448. These statutes are virtually identical to the law construed
in Seymour v. Superintendent, which also 'authorized and directed' the
Secretary 'to sell or dispose of' specified lands 'under the provisions of the

homestead laws.' Act of Mar. 22, 1906, 1, 3, c. 1126, 34 Stat. 80-81. They
are quite similar to the Act at issue in Mattz which 'declared' specified lands 'to
be subject to settlement, entry, and purchase under the laws of the United States
granting homestead rights and authorizing the sale of mineral, stone, and timber
lands.' Act of June 17, 1892, 27 Stat. 52. They bear no resemblance, however,
to the statutes cited in Mattz as examples of 'clear language of express
termination.'
II
73

Since congressional intent must be unambiguous before we can conclude that

Congress terminated part of an Indian reservation, the absence of any express
provision to this effect in the Rosebud Acts strongly militates against the
interpretation the Court places on those Acts. But I need not rely on
congressional silence alone eloquent as it may be to reject the Court's
interpretation. For both the text of the Acts and the circumstances surrounding
their enactment affirmatively point to the opposite conclusion.

A.
74

The text of the Acts provides numerous indications that Congress did not intend
to remove the opened areas from the Reservation. First, the Acts granted the
Indians a variety of rights in those areas. All three Acts, for example, permitted
Indians with allotments in the counties to be opened to retain their allotments,5
and the 1907 and 1910 Acts also allowed certain Indians without allotments in
these counties to secure allotments there.6 All three Acts also granted the
Indians a beneficial interest in all the opened lands, since the Acts simply made
the United States 'trustee for (the) Indians to dispose of said lands.'7 And the
1904 and 1910 Acts authorized the Executive, before opening the counties to
settlers, to reserve some lands for Indian schools, religious missions, and
service agencies.8 Of course, it is possible that Congress intended to remove the
opened counties from the Reservation while leaving the Indians with a host of
rights in the counties. But this interpretation of the statutes is surely strained,
especially since nothing in the legislative history indicates that such an
anomalous result was desired. Thus, it is far more sensible to view these grants
to the Indians as evidence that Congress did not intend to terminate the
Reservation immediately.

75

This interpretation is supported by other provisions in the Acts as well. In the

1907 and 1910 Acts, for example, Congress directed that payments received
from sale of the lands to be opened were to be deposited 'to the credit of the
Indians belonging and having tribal rights on the Rosebud Reservation.'9 If the

Rosebud Acts also removed the opened counties from the Reservation, then the
members of the Tribe living in Gregory County, opened in 1904, were not
entitled to share in the proceeds of the 1907 or 1910 sales, and the members of
the Tribe living in Tripp County, opened by the Act of 1907, were not entitled
to the 1910 proceeds at the very least.10 Again, it is possible that Congress
intended this result. But, absent contrary evidence, it is far more reasonable to
assume that Congress meant for all members of the Tribe living on the original
Reservation to profit from the sales, since prior to the Rosebud Acts they all
had equal rights in the opened lands. Thus, the manner in which Congress
defined the class of beneficiaries in the 1907 and 1910 Acts indicates that
Congress believed that the Indians living in the opened counties still 'belonged'
to the Reservation after the lands were opened.
76

Finally, all the statutes contain an important guide to interpretation that the
Court ignores. Each Act states, in almost identical terms, that 'nothing in this
'agreement shall be construed to deprive the . . . Indians of the Rosebud
Reservation, South Dakota, of any benefits to which they are entitled under
existing treaties or agreements, not inconsistent with the provisions of this
agreement."11 These provisions constitute clear congressional commands to
interpret the Rosebud Acts so as to minimize conflicts with the Treaty of 1889.
Yet the Court ignores these provisions and maximizes the conflict, by
construing the Acts to limit not just the Rosebud Sioux's land use, but also their
jurisdiction.12

B
77

The Court's construction of the Rosebud Acts is also untenable when the Acts
are placed in historical context. Just as we held in Mattz that the statute at issue
there was to be interpreted 'from the overview of the earlier General Allotment
Act of 1887, 24 Stat. 388,' 412 U.S., at 496, 93 S.Ct., at 2253, so, too, must the
Rosebud Acts be construed from this perspective. As we observed in Mattz:

78

'(The policy of the General Allotment Act) was to continue the reservation
system and the trust status of Indian lands, but to allot tracts to individual
Indians for agriculture and grazing. When all the lands had been allotted and
the trust expired, the reservation could be abolished. Unallotted lands were
made available to non-Indians with the purpose, in part of promoting
interaction between the races and of encouraging Indians to adopt white ways.'
Ibid. (footnote omitted).

79

This policy reflected Congress' attempt 'to reconcile the Government's

responsibility for the Indians' welfare with the desire of non-Indians to settle

upon reservation lands.' DeCoteau v. District County Court, 420 U.S., at 432,
95 S.Ct., at 1087. Because the 'familiar forces' id., at 431, 95 S.Ct., at 1086, at
work on Congress demanded land for settlers, Congress opened the
reservations. But because these forces were not overly concerned with the
niceties of reservation boundaries, the reservation status of the opened areas
was preserved until the trust period expired, to insure federal protection of the
Indians while they were being 'civilized' through contacts with white settlers.
Thus, to interpret the Rosebud Acts as terminating three-fourths of the Rosebud
Reservation is to set them at war with Congress' general policy toward Indians
at the time the Acts were approved.
III
80

The Court ultimately rests its construction of the Act on an analysis of their
legislative history. While there may be occasional passages in the history that
suggest an intent to terminate,13 I cannot agree that such an intent is established
with anything approaching the requisite clarity.

81

In the first place, the legislative history of the Rosebud Acts is extraordinarily
sparse. The 1904 Act, which the Court properly regards as the crucial Act, was
introduced by Representative Burke of South Dakota on January 19, 1904, 38
Cong.Rec. 902-903; was reported out of the Committee on Indian Affairs,
which Mr. Burke chaired, two days later, id., at 1010; and passed the House on
February 1, id., at 1469, after a debate that consumes only six pages in the
Congressional Record, id., at 1423-1429.14 The bill was transmitted to the
Senate the same day; was reported out of the Committee chaired by Senator
Gamble of South Dakota three days later, id., at 1601; and was called up,
amended, and approved by the Senate without debate on April 18, id., at
4988.15 The House concurred in the Senate amendments the following day
without any discussion. Id., at 5155. The 1907 Act received even less
congressional attention. It was approved within one month after it was
introduced without any debate in the Senate, 41 Cong.Rec. 3323 (1907), and
with a debate in the House that occupies only one page in the Record, id., at
3104.16 Only the 1910 Act was seriously debated by Congress, and these
debates focused almost exclusively on the method by which the opened lands
would be distributed to white settlers. 45 Cong.Rec. 1066-1071, 5456-5473
(1910).

82

In light of the brevity of the debates, it is not surprising that there is a paucity of
relevant materials. The Court finds just two quotations from the debates, ante,
at 596, 608, and three quotations from the Committee Reports, ante, at 595,
611, 612, that directly bear on the disestablishment issue.17 What the Court

cannot find, however, is particularly telling. Unlike the debates in Mattz which
revealed that 'the establishment of the reservation . . . was viewed as a mistake
and an injustice,' 412 U.S., at 500, 93 S.Ct., at 2255, there were no expressions
of hostility toward the existence or size of the Rosebud Reservation. Nor were
there any statements indicating that Congress intended to deviate from its
general policy of preserving reservations or to abandon its role as guardian of
the Indians living in the opened counties. Indeed, although Congress was aware
that the Rosebud Acts initiated a new policy toward surplus lands18 one which
removed the Government from the role of buyer and the Indians from the role
of seller at no point in the debates did anyone discuss the consequences of this
change on Reservation boundaries.
83

The poverty of the Court's analysis is best revealed by its treatment of the
history of the crucial 1904 Act. The Court begins with 'the undisputed fact that
the 1901 Agreement, had it been ratified by Congress, would have
disestablished that portion of the Rosebud Reservation which lay in Gregory
County.' Ante, at 591. Its review of the legislative history then leads it to
conclude that 'there is no indication that Congress intended to change anything
other than the form of, and responsibility for, payment.' Ante, at 594-595. But
the fact that Congress did not expressly repudiate all of the consequences of an
Agreement to which it was not a party and which it had refused to ratify hardly
establishes that Congress affirmatively intended those consequences to result
from the very different transaction it devised in 1904.19 It is at least equally
plausible that Congress did not explain the effect of the 1904 Act because it
assumed that the Act would have precisely the same effect as earlier
nonpurchase surplus land Acts such as those considered in Mattz: The lands
would be opened and the reservations preserved. Nor is the fact that Congress
adopted the format of the 1901 Agreement especially probative, since this may
have been done simply out of convenience.

84

Ultimately, what the legislative history demonstrates, as cocounsel for the State
has aptly concluded, is that Congress manifested an 'almost complete lack of . .
. concern with the boundary issue.'20 The issue was of no great importance in
the early 1900's as it was commonly assumed that all reservations would be
abolished when the trust period on allotted lands expired. There was no
pressure on Congress to accelerate this timetable, so long as settlers could
acquire unused land. Accordingly, Congress simply did not focus on the
boundary question. Its indifference is perhaps best manifested by the fact that in
legislation concerning the Reservation enacted immediately subsequent to the
Rosebud Acts, Congress at times referred to the opened counties as part of the
Reservation, and at times referred to them as no longer part of the
Reservation.21 For the Court to find in this confusion and indifference a 'clear'

congressional intent to disestablish the Reservation is incomprehensible.

IV
85

The most obvious and immediate consequence of today's decision is

jurisdictional. Even though the people of South Dakota have expressly declined
to assume jurisdiction over Indian country,22 from now on crimes (or torts)
committed by the Indians on nontrust land in the opened counties will be within
the jurisdiction of the State. This will create an 'impractical pattern of
checkerboard jurisdiction,' in which 'law enforcement officers . . . will find it
necessary to search tract books in order to determine whether criminal
jurisdiction over each particular offense . . . is in the State or Federal
Government.' Seymour v. Superintendent, 368 U.S., at 358, 82 S.Ct., at 428. In
addition, even while on their trust lands, the almost 2,000 enrolled Indians in
the opened counties will be generally subject to 'state law otherwise applicable
to all citizens of the State,' Mescalero Apache Tribe v. Jones, 411 U.S. 145,
149, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 113 (1973), even if the same law could
not be applied to Reservation Indians because it would 'interfere with
reservation self-government or would impair a right granted or reserved by
federal law,' id., at 148, 93 S.Ct., at 1270. This is reason enough to be troubled
by today's decision.

86

But beyond these jurisdictional consequences, the holding today places a grave
cloud over the property rights of both the Tribe and the Indians living off the
newly contracted Reservation. With respect to the Tribe, 4,600 acres in the
opened counties were returned to it pursuant to the Indian Reorganization Act
of 1934, 48 Stat. 984, after the Secretary found, in the words of 3 of the Act,
that these were 'the remaining surplus lands of (an) Indian reservation' opened
before June 18, 1934. But if the opened counties were not part of the
Reservation, then the Secretary's right to return the land to the Tribe is at least
open to question.23 More seriously, the Indians living on trust lands in the
opened counties have assumed that 2 of the Reorganization Act, which
extended the trust period on 'Indian lands,' applied to their property. But if these
counties were not part of a reservation, this assumption is dubious at best, since
8 of the Act states that the Act shall not 'be construed to relate to Indian
holdings of allotments . . . upon the public domain outside of the geographic
boundaries of any Indian reservation now existing . . ..' Should it be determined
that the trust period was not extended, the State of South Dakota could claim
crushing amounts of back taxes.

87

Finally, today's decision may result in a sharp reduction in the federal aid
available to members of the Rosebud Tribe living off the Reservation. The

Bureau of Indian Affairs has been administering the opened counties as part of
the Reservation, see n. 2, supra, and in requesting appropriations for the
Reservation Indians has included Indians living in the opened counties, Brief
for United States as Amicus Curiae 37-38. In addition, we have been advised
by the Association on American Indian Affairs, et al., as amici curiae, that the
Rosebud Tribe has received a large amount of federal aid pursuant to a variety
of federal programs. Brief 31-39. The Association reports that in the past the
Tribe has been able to expend these monies for programs in the opened as well
as the closed counties, because the federal agencies have viewed all the
counties as part of the Reservation. Ibid. But in light of today's decision, the
Tribe's ability to use federal funds to benefit tribal members living in these
counties is in serious doubt.24
88

Nor are these potential consequences limited to the Rosebud Reservation. The
Rosebud Acts were described by their sponsors as the beginning of a new
policy with respect to surplus lands. See n. 18, supra. During the decade
following the enactment of the first Rosebud Act, Congress passed 21 other
statutes that opened surplus reservation lands to settlers.25 If the Rosebud Acts
diminished the Rosebud Reservation, then the boundaries of more than a score
of other reservations must be in doubt.

89

Because I can find no principled justification for inflicting manifold injuries on

the Rosebud Sioux Indians and for jeopardizing the rights of numerous other
tribes, I respectfully dissent.

Act of Apr. 23, 1904, 33 Stat. 254; Act of Mar. 2, 1907, 34 Stat. 1230; Act of
May 30, 1910, c. 260, 36 Stat. 448.

The written consent of a majority of the Tribe was obtained prior to the 1904
and 1907 Acts, infra, at 593, 607; no written consent was obtained prior to the
1910 Act, but the "practically unanimous" concurrence of the Indians was
reported, Infra, at 610.

The Tribe was eventually paid for all of the land opened to settlement in the
three Acts, with the exception of some 4,600 acres, which were returned to the
Tribe pursuant to an 'Order of Restoration' dated January 12, 1938. See Indian
Reorganization Act, 48 Stat. 984.

The focus of our inquiry is congressional intent. This Court has pointed in its
prior decisions to factors from which intent is inferred. The dissent erroneously
seizes upon several factors and presents them as apparent absolutes, post, at

617-618. This, however, misapprehends the nature of our injury, which is to

inquire whether a congressional determination to terminate is 'expressed on the
face of the Act or (is) clear from the surrounding circumstances and legislative
history.' Mattz v. Arnett, 412 U.S. 481, 505, 93 S.Ct. 2248, 2258, 37 L.Ed.2d
92 (1973). Mattz, upon which the dissent relies, did not set forth absolutes.
Rather, it first examined the history of the Reservation, id., at 485-494, 93
S.Ct., at 2248-2252, and then examined the enactment in light of this history
and other surrounding circumstances. While in footnote 22 of Mattz we referred
to examples of cases in which Congress had used 'clear language of express
termination' in particular situations, the notion that such express language in an
Act is the only method by which congressional action may result in
disestablishment is quite inconsistent with the just-quoted language from the
text of Mattz. The dissent nonetheless relies on what it perceives to be an
absence of any express disestablishment language as that which is 'perhaps
most striking about the Rosebud Acts . . ..' Post, at 618. Even then, however,
the dissent concedes as it must, that this 'most striking' fact is not a fact at all
with respect to the crucial 1904 Act: There Congress used cession language
which DeCoteau v. District County Court, 420 U.S. 425, 445, 95 S.Ct. 1082,
1093, 43 L.Ed.2d 300 (1975), found to be 'precisely suited' to disestablishment.
5

This termination of Reservation status was agreed to by three-fourths of the

adult male Indians on the Great Sioux Reservation, S.Ex.Doc. 51, 51st Cong.,
1st Sess., 234, 242 (1890).

Under 12, 25 Stat. 892,

'at any time after lands have been allotted to all the Indians of any tribe as
herein provided, or sooner, if in the opinion of the President it shall be for the
best interests of said tribe, it shall be lawful for the Secretary of the Interior to
negotiate with such Indian tribe for the purchase and release by said tribe, in
conformity with the treaty or statute under which said reservation is held of
such portions of its reservation not allotted as such tribe shall, from time to time,
consent to sell, on such terms and conditions as shall be considered just and
equitable between the United States and said tribe of Indians, which purchase
shall not be complete until ratified by Congress . . ..'
This reproduced, verbatim, the language of the General Allotment Act, 5, Act
of Feb. 8, 1887, 24 Stat. 389.

See H.R.Rep. No. 486, 56th Cong., 1st Sess., 1 (1900): 'The people are anxious
that this particular part of the reservation be opened and opportunity given for
settlement and development of that region of the State. . . .
'The Committee is informed the Indians are willing to treat for a cession of the

lands in question.'
8

Agreement, dated Sept. 14, 1901, between James McLaughlin, on the part of
the United States, and the Sioux Tribe of Indians belonging on the Rosebud
Reservation:
'ARTICLE I. The said Indians belonging on the Rosebud Reservation, South
Dakota, for the consideration hereinafter named, do hereby cede, surrender,
grant, and convey to the United States all their claim, right, title, and interest in
and to all that part of the Rosebud Indian Reservation now remaining
unallotted, situated within the boundaries of Gregory County, South Dakota . .
..
'ART. II. In consideration of the land ceded, relinquished, and conveyed by
Article I of this agreement, the United States stipulates and agrees to expend for
and pay to said Indians, in the manner hereinafter provided, the sum of one
million and forty thousand (1,040,000) dollars.' S. Doc. No. 31, 57th Cong., 1st
Sess., 28 (1901).

In 1902, a ratification bill passed the Senate and was reported favorably in the
House. 35 Cong.Rec. 5024 (1902); H.R.Rep. No. 2099, 57th Cong., 1st Sess.
(1902). The bill was never given any consideration on the floor of the House.

10

See also S.Rep. No. 3271, 57th Cong., 2d Sess., 2 (1903); 36 Cong.Rec. 2748
(1903) (remarks of Sen. Gamble). Congressman Burke and Senator Gamble
were the sponsors of the various bills concerning the Rosebud Reservation. As
the Court of Appeals noted, and as all parties appear to agree: 'The problem in
the Congress was not jurisdiction, title, or boundaries. It was, simply put,
money.' 521 F.2d 87, 94.

11

Proceedings of a Council with the Indians of Rosebud Reservation, Sept. 5,

1901, in S.Doc. No. 31, 57th Cong., 1st Sess., 12 (1901); see also Proceedings
of a Council with the Indians of the Ponca Creek District, Rosebud Reservation,
Apr. 13, 1901, in S.Doc. No. 31, supra, at 8-10.

12

H.R.Rep. No. 3839, 57th Cong., 2d Sess., 1-2 (1903) (to accompany H.R.
17467); S.Rep. No. 3271, 57th Cong., 2d Sess., 2 (1903) (to accompany S.
7390).

13

Letter from the Commissioner of Indian Affairs to James McLaughlin, U.S.

Indian Inspector, June 30, 1903, App. 461-462:
'In a joint request to the Department dated April 4, 1903, the members of the
South Dakota delegation in Congress . . . asked that an Inspector be detailed to

proceed to the Rosebud Indian reservation, in South Dakota, for the purpose of
negotiating a new agreement with the Indians thereof for the cession of the
unallotted portion of their reserve embraced in Gregory County, along the lines
proposed in Senate Bill No. 7390 . . ..
'The essential features of said S. 7390, with which you are already familiar, are
as follows:
'(1) That instead of paying the Indians the lump sum of $1,040,000 for the
surplus Gregory County lands as provided in the agreement of September 14,
1901, the lands be disposed of to settlers under the provisions of the homestead
and town-site laws, excepting sections 16 and 36 or the equivalent thereof, at
not less than $2.50 per acre, the proceeds arising from such sale to be paid to
the Indians.'
In light of Lone Wolf v. Hitchock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299
(1903), the House and Senate Committees understood that consent of the
Indians to the change was not mandatory, but 'in view of the (1868) treaty
stipulation . . . it would be better to require the treaty as amended to be accepted
by the Indians before it becomes effective.' H.R.Rep. No. 3839, supra, at 2;
S.Rep.No. 3271, supra, at 2.
14

Minutes of Council held at Rosebud Agency, S.D. with the Sioux Indians
belonging on the Rosebud Reservation 21-22 (July 30, 1903); see also id., at 37
(Aug. 8, 1903); id., at 50 (Aug. 10, 1903).

15

The operative language of the new Agreement was identical to that contained in
the 1901 Agreement:
'The said Indians belonging on the Rosebud Reservation, South Dakota, for the
consideration hereinafter named, do hereby cede, surrender, grant, and convey
to the United States all their claim, right, title, and interest in and to all that part
of the Rosebud Indian Reservation now remaining unallotted, situated without
the boundaries of Gregory County . . ..'

16

Minutes of Council held at Rosebud Agency, S.D., with the Sioux Indians
belonging on the Rosebud Reservation 21-22 (July 30, 1903); see also id., at 37
(Aug. 8, 1903); id., at 50 (Aug. 10, 1903).

17

H.R.Rep. No. 443, 58th Cong., 2d Sess., 1, 3 (1904) (accompanying H.R.

10418). The Report, id., at 4, in discussing Lone Wolf v. Hitchcock, supra,
considered whether ratification of the amended Agreement, which had not
received the approval of three-fourths of the adult male Indians, was
appropriate, and concluded that it was:

'It appearing, therefore, that more than three-fourths of the male adult Indians
signed the original treaty, that more than a majority were willing to sell at a less
(sic) price than provided in this bill, and fact that the Department recommends
the passage of the measure, provided the Indians can be insured of a lump sum
equal to $1,040,000, the amount mentioned in the original treaty, and the
committee having fixed a price that it is believed wise and no insure this
amount it is thought wise and no hardship or even injustice to the Indians to
have such a measure passed, and for that reason recommend the passage of the
bill.'
18

Despite this 'uncertain sum' proviso, 2 of the Act, 33 Stat. 258, suggests that
Congress viewed this land as disestablished immediately: 'That all lands herein
ceded and opened to settlement under this Act, remaining undisposed of at the
expiration of four years from the taking effect of this Act, shall be sold and
disposed of for cash, under rules and regulations to be prescribed by the
Secretary of the Interior, not more than six hundred and forty acres to any one
purchaser.'

19

Congress was explicitly aware that it was acting pursuant to the holding in
Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903). See
H.R.Rep. No. 443, supra, n. 17, at 3-4; 38 Cong.Rec. 2829, 2832 (1904)
(remarks of Rep. Burke).

20

We noted in DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082,
43 L.Ed.2d 300 (1975), the fact that Congress had there ratified a sale for a
sum certain. These two facts Indian consent and a sum-certain payment aided
us in determining that congressional intent was to terminate the Reservation.
But, as the Court of Appeals in the instant case recognized, '(t) he determination
of disestablishment . . . rests upon congressional intent, as to which the method
of payment, whether lump-sum or otherwise, is but one of many factors to be
considered.' 521 F.2d, at 102. DeCoteau rested upon precisely such a
determination, and neither the sum certain nor the consent was considered
dispositive one way or the other. The statutory language discussed in DeCoteau
is similar to the language of the 1904 Act. While the 1904 Act, to be sure, lacks
a sum-certain payment as well as approval by three-fourths of the adult male
Indians, it, in common with DeCoteau, starts from the form of an agreement,
which was fully explained to the Rosebud Tribe both in 1901 and in 1904. The
congressional recognition 'that the Agreement could not be altered,' 420 U.S., at
438, 95 S.Ct., at 1089, was not present in this case for the simple reason that
between the Sisseton-Wahpeton Agreement and the 1904 Rosebud Act, Lone
Wolf v. Hitchcock, supra, had been decided. Nor is there any 'clear retreat from
previous congressional attempts to vacate the . . . Reservation in express terms,'
DeCoteau v. District County Court, supra, at 448, 95 S.Ct., at 1095, as there

was in Mattz v. Arnett. Finally, as is discussed, infra, at 603-605, as in

DeCoteau, the State has exercised unquestioned jurisdiction over the disputed
areas since the passage of the enactment an indication of the intended purpose
of the Act that was not present in Mattz v. Arnett, 412 U.S., at 505, 93 S.Ct., at
2258. Moreover, other factors, not present in DeCoteau, press for a finding of
disestablishment. Here, for example, unlike the situation in DeCoteau, we are
not faced with an Act which, if it disestablished the area under question, would
terminate the entire reservation. 420 U.S., at 446-447, 95 S.Ct., at 1094.
Considered together, we feel that those disestablishment factors present in
DeCoteau but not present here are counterbalanced by the disestablishment
factors present both here and in DeCoteau as well as those factors present here,
but not in DeCoteau.
21

See e. g., 35 Cong.Rec. 3187 (1902) (remarks of Sen. Gamble):

'Under the provisions of the enabling act authorizing the admission of the State
of South Dakota into the Union, sections 16 and 36 in every township were
reserved for school purposes. This provision did not apply to permanent Indian
reservations, but became operative when the Indian title was extinguished and
the lands restored to and became a part of the public domain.'
38 Cong.Rec. 1423 (1904):
'Mr. FINLEY. . . . Then as I understand the gentleman, he bases the wisdom or
equity for this provision upon the enabling act admitting South Dakota into the
Union. Mr. BURKE. Yes. Mr. FINLEY. And not otherwise? Mr. BURKE. No.'

22

H.R.Rep. No. 3839, 57th Cong., 2d Sess., 2 (1903); S.Rep.No. 3271, 57th
Cong., 2d Sess., 2 (1903); H.R.Rep. No. 443, 58th Cong., 2d Sess., 2 (1904);
S.Rep.No. 651, 58th Cong., 2d Sess., 2 (1904). See also n. 40, infra.

23

Moreover, as discussed in n. 24, infra, under Minnesota v. Hitchcock, 185 U.S.

373, 22 S.Ct. 650, 46 L.Ed. 954 (1902), it was a possibility that the lands in
Gregory County, although disestablished from the Reservation by the 1904 Act,
were not thereby converted into 'public lands.' Section 10 of the Act of
February 2, 1889 would not, in that case, apply to the lands even though
disestablished from the Reservation.

24

Petitioner urges that the 'school sections' provision indicated that Congress was
not disestablishing the county, since, upon disestablishment, the sections would
have automatically passed to South Dakota under 10 of the Act of February
22, 1889. We disagree. Section 4 of the 1904 Act not only provides for the
grants of the sections to the State, but also for the method and amount of
payment. The section, therefore, is not superfluous. See also n. 23, supra.

The United States, as amicus curiae, argues that Minnesota v. Hitchcock, supra,
supports the position of petitioner. Hitchcock, however does not deal with the
question of whether the utilization of an explicit 'school sections' clause
demonstrates that Congress must have intended the Reservation boundaries to
have continued undiminished. Rather, the issue in Hitchcock was quite
different: It dealt with whether ceded lands automatically became subject to an
earlier Act's 'school sections' provision. The Court concluded that 'none of these
ceded lands passed under the school grant to the State' because, due to a trust
imposed upon them, they had a preceding status that precluded their becoming
'public lands.' 185 U.S., at 395, 401-402, 22 S.Ct., at 659, 661. This preceding
status could exist even if the lands were disestablished from a reservation.
United States v. Pelican, 232 U.S. 442, 449, 34 S.Ct. 396, 399, 58 L.Ed. 676
(1914); cf. Ash Sheep Co. v. United States, 252 U.S. 159, 166, 40 S.Ct. 241,
242, 64 L.Ed. 507 (1920). As recognized by the Court of Appeals, 'the fact that
a beneficial interest is retained does not erode the scope and effect of the
cession made, or preserve to the reservation its original size, shape, and
boundaries.' 521 F.2d, at 102. The question of whether lands become 'public
lands' under Hitchcock and Ash Sheep, is therefore, logically separate from a
question of disestablishment. United States v. Pelican, supra. As the issue is not
before us, we need not decide whether or not the lands became 'public lands.'
25

As noted by the Court of Appeals, 521 F.2d, at 102 n. 54:

'Congressional action with reference to Gregory County shortly after the
passage of the 1904 Act also confirms the conclusions. By the Act of February
7, 1905, ch. 545, 33 Stat. 700, Congress granted settlers an extension of time in
which to establish their residence upon the opened Gregory County lands. The
title and the body of the Act contain the following language:
'lands which were heretofore a part of the Rosebud Indian Reservation within
the limits of Gregory County, South Dakota.'
'33 Stat. 700 (Emphasis added). See S.Rep. No. 2760, 58th Cong., 3d Sess., 1
(1905); H.R. Rep. No. 4198, 58th Cong., 3d Sess., 1 (1905); 39 Cong.Rec.
1578 (1905) (remarks of Sen. Gamble).'
The 1905 Act, passed a short time after the 1904 Act by the same Congress,
and dealing with the same subject matter, is additional evidence of the
conngressional intent to disestablish Gregory County from the Rosebud
Reservation in the 1904 Act. There are, moreover, references in the legislative
history of the 1907 and 1910 Acts, discussed, infra, at 608, 609, and nn. 38, 39,
and at 611, 612, which reinforce the conclusion that Congress, in 1904,
disestablished Gregory County.

26

27

28

See also State v. White Horse, 231 N.W.2d 847 (S.D.1975). This factor, of
course, applies with equal force to the counties affected by the 1907 Act and by
the 1910 Act, infra, at 605-615.
As already noted, the District Court found that '(f)rom the time these acts were
passed, these (four) counties have been treated as outside the Rosebud Sioux
Reservation by the settlers, their descendants, the State of South Dakota and the
federal courts.' 375 F.Supp., at 1084. This factual finding is unchallenged. Both
parties rely on other post-Act indicia of jurisdictional assumption, but they are,
at best, confusing and unenlightening. The Indian Reorganization Act of 1934,
48 Stat. 984, and the Department of Interior's reaction thereto, urged perhaps
most fervently by the United States as amicus curiae, fail to establish with
anything like clarity the view of Congress, or the Department of the Interior, in
the 1930's, with respect to land affected by such Acts as the 1904 Act involved
herein. Under 3 of the Indian Reorganization Act, the Secretary of the Interior
was authorized 'to restore to tribal ownership the remaining surplus lands of
any Indian reservation heretofore opened . . .' 48 Stat. 984. Under 8, however,
it was stated that '(n)othing contained in this Act shall be construed to relate to
Indian holdings of allotmernts or homesteads upon the public domain outside of
the georgraphic boundaries of any Indian reservation now existing . . ..' 48 Stat.
986. Section 8, relied heavily upon by the United States in its amicus brief, on
its face refers to nothing more than 'Indian holdings of allotments or
homesteads' outside the boundaries of a reservation. This comports with the
definition of 'Indian country' in 18 U.S.C. 1151. In any case, no clear view on
the part of the relevant agencies that land opened up under uncertain-sum
agreements remained reservation land exists. Compare Interior Department
Opinion, 54 I.D. 559, 560 (1934), with Opinion of Acting Solicitor, 56 I.D.
330, 333 (1938). As was observed, n. 24, supra, the question of whether lands
became public lands is separate from the question of intent to disestablish
boundaries. The relevant materials presented with respect to the Indian
Reorganization Act of 1934 simply do not present any clear treatment of the
scope of the Rosebud Reservation, and hence are of minimal utility in our
examination. Nor do we have a history of 'repeated recognition of the
reservation status of the land after (the 1904 Act) by the Department of the
Interior and by Congress.' Mattz v. Arnett, 412 U.S., at 505, 93 S.Ct., at 2258.
The material presented by the parties reveals no consistent, or even dominant,
approach to the territory in question. In light of the clear assumption of
jurisdiction over the past 70 years by the State of South Dakota of the territory
now in dispute, and acquiescence by the Tribe and Federal Government, this
sporadic, and often contradictory, history of congressional and administrative
actions in other respects carries but little force.
Cf. Massachusetts v. New York, 271 U.S. 65, 87, 94, 46 S.Ct. 357, 360, 362, 70

L.Ed. 838 (1926); Martin v. Waddell, 16 Pet. 367, 411-412, 414, 418, 10 L.Ed.
997 (1842). A showing of long-standing assumption of jurisdiction is, in the
related area of state boundary disputes, entitled to considerable weight. See
Rhode Island v. Massachusetts, 4 How. 591, 639, 11 L.Ed. 1116 (1846);
Louisiana v. Mississippi, 202 U.S. 1, 53-54, 26 S.Ct. 408, 423, 50 L.Ed. 913
(1906); Michigan v. Wisconsin, 270 U.S. 295, 308, 46 S.Ct. 290, 294, 70 L.Ed.
595 (1926); Massachusetts v. New York, supra, at 95, 46 S.Ct., at 363;
Arkansas v. Tennessee, 310 U.S. 563, 569, 60 S.Ct. 1026, 1030, 84 L.Ed. 1362
(1940). In United States v. Stone, 2 Wall. 525, 537, 17 L.Ed. 765 (1865),
involving a boudnary between the Delaware Indian Reservation and land set
aside for a United States Government military post, this Court stated: 'In the
case of private persons, a boundary surveyed by the parties and acquiesced in
for more than thirty years, could not be made the subject of dispute by
reference to courses and distances called for in the patents under which the
parties claimed, or on some newly discovered construction of their title deeds.
We see no reason why the same principle should not apply in the present case .
. ..'
29

While, of course, urging that there was no congressional intent to disestablish,

petitioner assets that '(t)he substance of all three statutes is the same, as is much
of the language.' Brief for Petitioner 40. And again, id., at 41:
'The 1904 Act differs in format from the 1907 and 1910 Acts but not in
substance . . . As a result of these and other substantive changes (between the
1901 Agreement and the 1904 Act), the 1904 Act, in legal effect, as well as
language, is the same as the 1907 and 1910 Acts. In all three statutes, the land
was opened for sale to settlers with the proceeds credited to the Indians only as
received.'

30

The dissenters feel that the 1907 and 1910 Acts 'are far simpler for present
purposes' since '(t)hey contain neither words of cession nor words of
termination.' Post, at 620. But the dissenters also recognize, as did the parties,
that the 1904 Act is 'properly regard(ed) as the crucial Act . . ..' Post, at 626.
The 1907 and the 1910 Acts must be considered in context, and an important
part of that context is the 1901 Agreement and the 1904 Act.

31

Reference to letter of Nov. 22, 1906, from Rep. Burke to the Department of the
Interior, Office of Indian Affairs, in letter of Dec. 5, 1906, from Commissioner
F. E. Leupp, to Inspector James McLaughlin. Bills were introduced in
December 1906, 41 Cong.Rec. 15 (1906) (Burke bill, H.R. 20547); id., at 50-51
(Gamble bill, S. 6618).

32

Letter of Dec. 5, 1906, from Commissioner F. E. Leupp, supra. Inspector

McLaughlin was told that it was 'but right to the Indians also that you should
explain to them' that Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47
L.Ed. 299 (1903), 'vests in Congress the right to open their lands without their
consent; that the desire of the Department in sending you to talk the matter over
with the Indians is to obtain from them their views of the terms on which the
opening ought to be made . . .'
33

Letter from E. A. Hitchcock, Secretary of the Interior, to the Chairman,

Committee on Indian Affairs, House of Representatives, Feb. 14, 1907
(enclosing Agreement), in H.R.Rep. No. 7613, 59th Cong., 2d Sess., 4 (1907).

34

In response to a question which inquired whether 'the provisions of the treaty

(have) been inserted in this bill,' Congressman Burke replied: 'I may say to the
gentleman that they have been.' 41 Cong.Rec. 3104 (1907).

35

See the discussion, n. 18, supra, of the 1904 Act's comparable provision.

36

The discussion, supra, at 599-601, with respect to the 'school sections' provision
of the 1904 Act, applies equally here.

37

This, too, is substantively identical to the 1904 Act, supra, at 596.

38

In one particular, the language of the 1907 Act reinforces our conclusion with
respect to the 1904 Act. The 1907 Act, 34 Stat. 1230, was to open 'all that
portion of the Rosebud Indian Reservation in South Dakota lying south of the
Big White River and east of range twenty-five west of the sixth principal
meridian . . .' This description would encompass Gregory County as well as
Tripp County, unless the 1904 Act had disestablished Gregory County from the
Reservation. See H.R.Rep. No. 7613, 59th Cong., 2d Sess., 1 (1907) (the bill
'affects all that portion of the reservation east of range 25 of the fifth principal
meridian south of the Big White River . . .'); S.Rep. No. 6838, 59th Cong., 2d
Sess., 1 (1907).

39

Mellette and Todd Counties, the two counties unaffected by the 1904 and 1907
Acts, compose approximately 1.8 million acres, whereas the original (1889)
Reservation encompassed somewhat over 3.2 million acres. A letter, dated
January 26, 1909, from James Garfield, Secretary of the Interior, to Senator
Gamble, S.Rep. No. 887, 60th Cong., 2d Sess., 3 (1909), clearly noted the
perceived disestablishment of major portions of the Rosebud Reservation by the
prior two Acts:
'The Rosebud Reservation has been reduced very rapidly during the last few
years, and intimations have reached this department from trustworthy sources
that there is danger that the land available for allotment may be exhausted if

too large a reduction is made at this time. I do not believe, therefore, that the
strip of land on the east of the present diminished reservation should be opened
yet.'
40

See also 45 Cong.Rec. 1068 (1910) (colloquy between Sen. Gamble and Sen.
Crawford):
'MR. GAMBLE. . . . (T)he Government agreed to reserve these lands and to
pay for them, not only by law, but under the enabling act admitting the State of
South Dakota to the Federal Union.
'MR. CRAWFORD. Sections 16 and 36, to which the Senator refers, are held
from the settler and are given to the State to keep good the pledge made to the
State by the Government under the enabling act when the State was admitted
into the Union . . ..'

41

The Secretary of the Interior believed that 'the views of the Indians should be
procured before the bill is finally acted on,' although recognizing 'the fact the
Congress can enact legislation of this character without the consent of the
Indians interested . . ..' Letter dated Jan. 26, 1909, from James Garfield,
Secretary of the Interior, to Sen. Gamble, in S.Rep. No. 887, supra, at 3.

42

Letter dated Apr. 29, 1909, from James McLaughlin to the Secretary of the
Interior. For the negotiations with the Indians, see Transcript of Council held at
Rosebud Agency, Mar. 11, 1909; Proceedings of Council held with the Indians
of the Rosebud Reservation, Apr. 21 and 26, 1909.

43

See 44 Cong.Rec. 132 (1909) (S. 183); id., at 2013 (H.R. 9544); 45 Cong.Rec.
10 (1909) (H.R. 12437).

44

Letter dated Jan. 13, 1910, from R. A. Ballinger, Secretary of the Interior, to
Sen. Clapp. S.Rep. No. 68, at 5.

45

H.R.Rep. No. 332, 61st Cong., 2d Sess., 2 (1910) (accompanying H.R. 12437)
(emphasis supplied).

46

Act of May 30, 1910, c. 260, 36 Stat. 448; 45 Cong.Rec. 6437 (1910)
(Conference Report passes House); id., at 6326 (Conference Report passes
Senate).

47

See id., at 5464 (colloquy between Rep. Bartholdt and Rep. Butler):
'MR. BARTHOLDT. But if the lands are allotted it is no longer an Indian
reservation.

'MR. BUTLER. If the lands are allotted, it will be no longer an Indian

reservation . . . It is where, as I understand, the Indian has
always lived and where he is going to live, and I believe in keeping the sale of
liquor out of his neighborhood.'
Under Dick v. United States, 208 U.S. 340, 359, 28 S.Ct. 399, 405, 52 L.Ed.
520 (1908), Congress was entitled to attach liquor prohibitions, reasonable in
duration, on non-Indian land which Indians were likely to frequent. Congress
explicitly was adding this provision under the authority of Dick. See Letter date
Jan. 13, 1910, from R. A. Ballinger, Secretary of the Interior, to Rep. Burke.
The petitioner, as well as the United States, as amicus curiae, relies on In re
Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848 (1905). As suggested by the
United States, Brief for United States as Amicus Curiae 40 n. 28:
'Although the courts below suggested that the provision would be unnecessary
if the Reservation were continued . . ., that suggestion is erroneous. As the
debates show, 45 Cong.Rec. 5460-5464 (1910), members of Congress were
fully aware of this Court's decision in In re Heff, 197 U.S. 488, 25 S.Ct. 506, 49
L.Ed. 848, holding that Indian allottees were subject to state liquor laws.'
This reliance is misplaced. Heff did not deal with the question of the sale of
liquor to Indian allottees on a reservation where liquor was forbidden by the
Act of July 23, 1892, 27 Stat. 260. Rather, Heff dealt with the sale of liquor to
Indian allottees under the Act of January 30, 1897, 29 Stat. 506, which
prohibited the sale of liquor (without restriction on location) to Indians. Heff, in
short, dealt with an Act which prohibited the sale of liquor, anywhere, based on
the status of a person, while the prohibition of sales on Indian country under the
1892 Act applied to areas, regardless of the status of the person. (Insofar as is
relevant, the 1892 Act states that no 'intoxicating liquor or liquors of whatever
kind shall be introduced, under any pretense, into the Indian country.') This
distinction was recognized in Dick v. United States, supra, 208 U.S., at 352, 28
S.Ct., at 402, which, noting In re Heff, observed that the Indians involved in
Dick were citizens of the United States, but then went on to discuss the 'Federal
liquor statute forbidding the introduction of intoxicating drinks into the Indian
country.' Thus, under the 1892 Act, as recognized in Dick, liquor was flatly
prohibited from introduction into the Indian country, a prohibition which
prevented sale to all persons. Indian country, however, did not apply to territory
on which 'the Indian title had been extinguished, and over which and over the
inhabits of which . . . the jurisdiction of the State . . .
was full and complete.' Dick v. United States, supra, at 352, 28 S.Ct., at 403.
Land remaining within the boundaries of a reservation, of course, would not be

subject to the 'full and complete' jurisdiction of the State. See Williams v. Lee,
358 U.S. 217, 223, 79 S.Ct. 269, 272, 3 L.Ed.2d 251 (1959). While, prior to the
statutory definition in 18 U.S.C. 1151, the defined areas of Indian country
may have been a bit vague, see Seymour v. Superintendent, 368 U.S. 351, 357,
82 S.Ct. 424, 427, 7 L.Ed.2d 346 (1962), Dick was the most recent
pronouncement on the subject at the time of the 1910 Act, and clearly defined
Indian country with reference to state jurisdiction. See United States v. Pelican,
232 U.S. 442, 449, 34 S.Ct. 396, 399, 58 L.Ed. 676 (1914); Perrin v. United
States, 232 U.S. 478, 482, 34 S.Ct. 387, 389, 58 L.Ed. 691 (1914) (discussing
the congressional power 'to prohibit the introduction of intoxicating liquors into
an Indian reservation . . .'); cf. United States v. Mazurie, 419 U.S. 544, 554-555,
95 S.Ct. 710, 716, 42 L.Ed.2d 706 (1975). The liquor provision in 10 of the
1910 Act, accordingly, is a strong indication that Congress did not view the
affected areas as 'Indian country,' but, rather, as disestablished from the
Reservation.
48

The dissent speculates expansively on the possible adverse consequences of

today's decision, post, at 630-625. Most, if not all, of these consequences
involve issues not presented by this case. To the extent the members of the
Rosebud Tribe are living on allotted land outside of the Reservation, they, too,
are on 'Indian country,' within the definition of 18 U.S.C. 1151, and hence
subject to federal provisions and protections. Our decision in Morton v. Ruiz,
415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974), moreover, that federal
benefits and programs shall be made available to tribal members living 'on or
near' the reservation, surely diminishes the specter of a 'sharp reduction in the
federal aid available to members of the Rosebud Tribe living off the
reservation.' Post, at 631. Certainly, that effect is much less clear than it would
have been in DeCoteau v. District County Court, where the entire reservation
was extinguished. The combined effect of 18 U.S.C. 1151 and Morton v.
Ruiz, supra, is that many of the dissent's parade of horribles are nothing more
than just that.

The constitution of the Rosebud Souix Tribe, approved by the Secretary of the
Interior in 1935, App. 1396-1397, states in Art. I that '(t)he jurisdiction of the
Rosebud Sioux Tribe . . . shall extend to the territory within the original
confines of the Rosebud Reservation boundaries as established by the act of
March 2, 1889 . . ..'
There is some confusion in the record concerning the jurisdictional history of
the disputed area. At the conclusion of his lengthy opinion, the District Judge
stated that 'the State of South Dakota has treated the (disputed) counties . . . as
portions of the state over which the State of South Dakota can exercise
jurisdiction since the passage of (the) acts.' 375 F.Supp. 1065, 1083 (SD 1974).

But contrary to the Court's suggestion, ante, at 604-605, n. 27, this statement is
hotly disputed insofar as it implies that the Tribe has conceded jurisdiction. The
Tribe claims it 'has consistently exercised jurisdiction over Indians on all parts
of the reservation.' Reply Brief for Petitioner 2b. The United States agrees,
Brief for United States as Amicus Curiae 32 n. 22, and has provided a number
of examples, id., at 23a-32a.
2

The United States reports that it has treated the disputed areas as part of the
Reservation, and that it maintains or funds child-welfare programs, burial
assistance, outpatient clinics, and housing in these areas. Id., at 37-38. See also
Letter from the Acting Area Director, Aberdeen, S.D., Bureau of Indian Affairs,
to Neil Proto, Dept. of Justice, Aug. 23, 1974, App. 1405-1409, detailing these
services.

The National Indian Law Library's compilation of Allotment/Cession Statutes,

Doc. No. 002279, contains 11 additional examples, taken from statutes enacted
between 1888-1913.

The United States did agree, in 4 of the Act, to purchase sections 16 and 36 of
Gregory County and to grant these sections to the State for school purposes.
The significance of this grant is discussed in n. 12, infra.

1904 Act, 1, Art. I; 1907 Act, 1; 1910 Act, 1.

The 1907 Act provided in 2 that before opening the lands the Secretary of the
Interior 'may permit Indians who have an allotment within the Rosebud
Reservation to relinquish such allotment and to receive in lieu thereof an
allotment anywhere within said reservation, and he shall also allot one hundred
and sixty acres of land to each child . . . belonging on the Rosebud Reservation
who has not heretofore received an allotment.' The fact that these allotments
were to be made before the county was opened to settlers indicates that they
could be taken from the lands to be opened. See also H.R.Rep. No. 7613, 59th
Cong., 2d Sess., 3 (1907) ('The bill further provides that . . . the Indians within
the reservation may relinquish allotments and select allotments in any other
portion of the reservation, including the tract affected by this bill'). (Emphasis
added.) The 1910 Act is even clearer in this regard; it excludes from the opened
county lands that 'have been or may be hereafter allotted to Indians.' (Emphasis
added.)
Significantly, the 1901 Agreement which, if ratified, would have partially
terminated the Reservation, did not contain any provision for new or in-lieu
allotments in the tract to be ceded.

1904 Act, 6; 1907 Act, 8; 1910 Act, 11. See also United States v. Brindle,

110 U.S. 688, 693, 4 S.Ct. 180, 182, 28 L.Ed. 286 (1884). Although as the
Court notes, ante, at 596-597, n. 18, Congress did attempt to assure that the
beneficial interest eventually would be extinguished, the Acts contain no
guarantee. Indeed, the Indians retained an interest in 4,600 acres until 1938
when these lands were restored to the Tribe.
8

1904 Act, 2; 1910 Act, 1 (second proviso). The 1910 Act in 1 also
reserved timberland to the Indians, although there was a dispute in Congress as
to whether any such land existed. Compare 45 Cong.Rec. 5471 (1910) (remarks
of Rep. Burke) with S.Rep. No. 68, 61st Cong., 2d Sess., 3 (1910). The
provision in the 1904 Act reserving these lands was not contained in the
original Agreement.

1907 Act, 5; 1910 Act, 7.

10

If the Rosebud Acts disestablished the Reservation, then arguably the Indians
in Tripp County were not entitled to share in the 1907 proceeds either. By the
time those proceeds were deposited 'to the credit of the Indians belonging and
having tribal rights on the Rosebud bud Reservation,' Tripp County had already
been opened and therefore, under the Court's view removed from the
Reservation by Act and Presidential Proclamation. Under this view, the Indians
living in Mellette County, opened in 1910, would not have been entitled to the
proceeds from the 1910 sales.

11

1904 Act, 1, Art. V; 1907 Act, 8; 1910 Act, 11.

12

The Court concludes that two other provisions in the Acts support its
interpretation. First, it notes, ante, at 599-601, 608, that in all three Acts
Congress agreed to purchase two sections of the opened counties for school
purposes. See n. 4, supra. Under the enabling Act admitting the Dakotas to the
United States, Act of Feb. 22, 1889, 10, 25 Stat. 679, Congress granted these
sections to the State when a reservation was to be 'extinguished and such lands
(are) restored to, and becom(e) a part of, the public domain.' Based on
ambiguous statements in the legislative history, e. g., H.R.Rep. No. 443, 58th
Cong., 2d Sess., 2 (1904) (the school provisions are 'in conformity with . . . the
enabling act'), the Court concludes that the grants in the Rosebud Acts were
included "to implement the
grant in the enabling Act and for no other reason." Ante, at 600. But if that
were true, the provisions in question would have been unnecessary, since the
grant in the enabling act was self-executing. Minnesota v. Hitchcock, 185 U.S.
373, 392-393, 22 S.Ct. 650, 657-658, 46 L.Ed. 954 (1902). Indeed, in 1902 the
House Committee on Indian Affairs had reached this conclusion with respect to
the proposed bill ratifying the 1901 Agreement, and, accordingly, it had deleted

the school provisions from the Senate version of the bill. H.R.Rep. No. 2099,
57th Cong., 1st Sess., 1 (1902). Since the Committee included school
provisions in the subsequent Rosebud Acts, e. g., H.R.Rep. No. 443, supra, at
2, it apparently believed that the change in the nature of the transaction meant
that Congress was no longer extinguishing the Reservation and restoring the
land to the public domain. Nothing in the legislative history suggests, as the
Court seems to imply, ante at 601 n. 24, that Congress thought it was
accomplishing the former but not the latter.
Second, the Court notes, ante, at 613-615, that 10 of the 1910 Act subjected
the opened lands "to all the laws of the United States prohibiting the
introduction of intoxicants into the Indian country." The Court reasons that if
Congress believed the Reservation would remain intact this provision was
unnecessary, since the Act of July 23, 1892, 27 Stat. 260, already prohibited the
introduction of intoxicants into 'Indian country.' Ante, at 614 n. 47. But in 1910
the definition of 'Indian country' was unsettled, and Congress may have feared
that patented land within a reservation was nevertheless not Indian country
under Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471 (1877), because Indian title
had been extinguished. Nothing in Dick v. United States, 208 U.S. 340, 28 S.Ct.
399, 52 L.Ed. 520 (1908), on which the Court relies, ante, at 614 n. 47, is to the
contrary, as Dick involved ceded lands as to which the United States and the
Indians had agreed federal laws would be applicable.
13

The statements that most clearly suggest an intent to terminate are fully
intelligible only to those with a knowledge of the geography of the Reservation.
For example, in the House Committee Report on the 1904 Act, the Committee
stated:
'There is no question but what the Indians have no use for the land that is
proposed to be ceded by this bill; that the tract is only a very small portion of
the Rosebud Reservation, and is really only a corner of the Reservation, which
will be left compact and in a square tract . . ..' H.R.Rep. No. 443, supra, at 3.
By consulting a map one discovers that without Gregory County the tract in
question the Rosebud Reservation would be 'compact' and 'square.' See also 41
Cong.Rec. 3104 (1907) (remarks of Rep. Burke: 'They will have left, after this
land is disposed of, a reservation that is substantially 50 miles square'); S.Rep.
No. 68, 61st Cong., 2d Sess., 2 (1910) ('The present area of the Rosebud Indian
Reservation aggregates about 1,800,000 acres'); H.R.Rep. No. 332, 61st Cong.,
2d Sess., 2 (1910) ('There will still be left a reservation containing about
1,000,000 acres, and . . . there is no occasion for continuing a reservation larger
than it will be when Mellette County is disposed of').

14

In the preceding session of Congress, Representative Burke had introduced an

identical bill, 36 Cong.Rec. 2409 (1903), which was approved by his
Committee two days later, id., at 2473, but never reached the House floor.

15

Senator Gamble had introduced a similar bill the preceding year, id., at 2434,
had obtained Committee approval in two days, id., at 2498; and Senate
approval, without debate six days later, id., at 2747-2748. He reintroduced the
bill on January 25, 1904, 38 Cong.Rec. 1100, but the House bill was approved
before the Senate could act on Senator Gamble's bill. See id., at 1877.

16

Representative Burke and Senator Gamble each had introduced similar bills in
December 1909 41 Cong.Rec. 15, 50-51. After an agreement was reached
between the Tribe and Inspector McLaughlin on January 21, 1907,
Representative Burke introduced a new bill, id., at 1782. On February 14, 1907,
the Office of Indian Affairs recommended that the agreement be approved
(even though the Indians had not assented), and the bill was reported out of the
House Committee that same day, id., at 3004. Two days later it passed the
House. Id., at 3105.
On February 18, the Senate Committee sent to the Senate a substitute version
of the 1906 Gamble bill. Id., at 3207. By that time, however, the House had
already approved the second Burke bill, and the Senate amended and approved
that bill on February 19, id., at 3323.

17

The Court also quotes some discussions bearing on the school lands and liquor
law provisions. See n. 12, supra.

18

See, e. g., H.R.Rep. No. 443, 58th Cong., 2d Sess., 2 (1904) ('(T)hese bills
present a new idea . . . and . . . will establish a new policy and be a departure
from the policy that has long since prevailed').

19

Although the Court states that the "problem in the Congress (with respect to the
1901 Agreement) was not jurisdiction, title, or boundaries. It was, simply put,
money," ante, at 591 n. 10, the historical evidence is not nearly so clear. In the
Senate, the concern with the 1901 Agreement was not with the fact that the
United States was expending money to acquire the lands, but with its failure to
obtain reimbursement from settlers. After much debate, however, the Senate
ultimately rejected an amendment that would have required settlers to purchase
the opened lands from the United States, 35 Cong.Rec. 4971 (1902), and
approved the agreement, id., at 5024. The House, on the other hand, never even
debated the ratification bill, and thus we have no firsthand knowledge of the
basis for the opposition in that body. All of the statements that the Court relies
on were made by proponents of the 1901 Agreement in connection with the
1903 and 1904 bills. Ante, at 591, and n. 10. Moreover, the fact that the House

apparently was unwilling to authorize the United States to purchase the lands
and recoup the costs from the settlers suggests that money was not the sole
concern.
20

Comment, New Town et al.: The Future of an Illusion, 18 S.D.L.Rev. 85, 117
(1973).

21

For example, in 1909 Congress appropriated funds for a mission '(o)n the
Rosebud Reservation,' and included within this category a mission in Gregory
County. 35 Stat. 809. On the other hand, a 1905 Act extending the time for
settling in Gregory County referred to the lands as 'heretofore a part of the
Rosebud Indian Reservation.' C. 545, 33 Stat. 700. The modern statutes appear
to be more consistent in labeling the opened counties as part of the Reservation.
See 77 Stat. 349 (1963); 78 Stat. 560 (1964); 89 Stat. 577 (1975).
The subsequent treatment of the disputed counties by the Interior Department
reflects a similar confusion as to the status of the counties. Each side has
presented to this Court a number of instances in which the counties were
referred to by Department personnel in terms favorable to their case. Compare
Brief for United States as Amicus Curiae 33-38, 33a-41a, with Brief for
Respondents 106-120. In the two instances in which Department officials have
addressed the question directly, however they have concluded that the opened
counties are part of the Reservation. 54 I.D. 559 (1934) (opinion of
Commissioner of Indian Affairs on Restoration of Lands Formerly Indian to
Tribal Ownership); App. 1398-1404 (memorandum of Field Solicitor,
Aberdeen, S.D., Apr. 6, 1972).

22

At oral argument we were informed that in 1962 the people of South Dakota
rejected by a referendum an Act of the legislature that would have granted the
State jurisdiction over Indian country pursuant to 6, 7, 67 Stat. 590. Tr. of
Oral Arg. 10.

23

Arguably the Secretary acted properly so long as the lands were part of the
Reservation at the time they were opened. See 56 I.D. 330 (1938). This was not
the theory on which the Secretary proceeded, however, in ordering restoration.
54 I.D. 559 (1934).

24

For example, according to the United States, the Department of Housing and
Urban Development, which has been making grants to the Tribe, will no longer
be able to approve projects in the opened counties, since with respect to those
counties the Tribe will no longer be a 'governmental entity' or 'public body'
under 42 U.S.C. 1460(h). Brief for United States as Amicus Curiae 38. The
Department of Agriculture has already ruled, in light of the Court of Appeals
decision, that money made available to the Tribe to acquire lands pursuant to

25 U.S.C. 488, cannot be used in the opened counties. Brief for Association
on American Indian Affairs et al. as Amici Curiae 36.
Of course, in holding that the opened counties are outside the Reservation, the
Court does not necessarily preclude the Government or the Tribe from
providing any aid to Indians in those counties. Cf. Morton v. Ruiz, 415 U.S.
199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974).
25

National Indian Law Library, Allotment/Cession Statutes, Doc. No. 002279. Of

these statutes, five were passed with the consent of the affected Indians; these
five were enacted within a year after the first Rosebud Act.
In addition to the 21 post-Rosebud Act statutes, there are at least five preRosebud Act laws which also opened surplus reservation land to settlers
without Indian consent. There are also at least 15 pre-Rosebud Act laws which
opened surplus land with consent.